marvin-wexler

Law, Justice and Poetry

Who Steals The Goose From Off The Common
(Anonymous English protest chant, circa 1600)

The law locks up the man or woman,
Who steals the goose from off the common.
But leaves the greater villain loose,
Who steals the common from off the goose.

The law demands that we atone
When we take things we do not own.
But leaves the lords and ladies fine
Who take things that are yours and mine.

The poor and wretched don’t escape
If they conspire the law to break.
This must be so but they endure
Those who conspire to make the law.

The law locks up the man or woman,
Who steals the goose from off the common.
And geese will still a common lack
Till they go and steal it back.

 
I practice law in New York City. Let me share some thoughts about law, justice and poetry.

The Supreme Court of the State of New York, New York County, resides in a large, temple-like building at 60 Centre Street in lower Manhattan. The massive steps leading to its front entrance have been the setting for many movie scenes. Above those steps an elaborate block-long triangular pediment, atop the massive Corinthian colonnade that covers the front of the Courthouse, bears this inscription, writ large: “The True Administration of Justice is the Firmest Pillar of Good Government.”

But judges are not elected and appointed to dispense justice; their function in our society is to uphold and apply the law. And the law and justice are two different things. As United States Supreme Court Justice Oliver Wendell Holmes Jr. supposedly said: “This is a court of law, young man, not a court of justice.” Whether or not Justice Holmes in fact said that, I think the vast majority of judges would agree with it.

Another problem (among many) is that there is strong tension between large-scale administration and justice. According to former New York Court of Appeals Chief Judge Jonathan Lippman, the New York State courts handle approximately four million cases each year.

Both in New York and in the rest of this world, justice is a rare and precious commodity. Poetic justice — defined in one dictionary as, “An outcome whereby a person receives his just deserts in a manner peculiarly or ironically appropriate” — is rarer still.

I have been practicing law since 1974, representing clients in the Courthouse on 60 Centre Street, in other State and Federal courts in New York, and in courts elsewhere.

I have been very fortunate over the years to have represented clients in numerous cases in which, while arguing the law, we were also able to invoke and champion justice, and also to strive for the poetic in our arguments. One such case was the fascinating representation of Vanessa Redgrave against the Boston Symphony Orchestra. To simplify matters greatly:

The BSO hired Ms. Redgrave in March 1982 to narrate Stravinsky’s opera-oratorio “Oedipus Rex” in a series of concerts in Boston and New York, as part of a celebration of the BSO’s Centennial. When that hiring became known, certain influential members of Boston’s Jewish community, including two people who sat on the BSO’s Board, protested her hiring because of Ms. Redgrave’s outspoken support of Palestinian rights. The two Board members told the BSO’s General Manager that the BSO should terminate the contract with Ms. Redgrave, and BSO management quickly bowed to that pressure and cancelled her contract. Peter Sellars (the renowned stage director, not the renowned actor), who the BSO had hired to direct “Oedipus Rex,” then refused to go on with the program unless Ms. Redgrave were reinstated. But the BSO refused, and “Oedipus Rex” was cancelled along with Ms. Redgrave. Ms. Redgrave then retained my firm, and we filed suit in Federal Court in Boston, as our client wanted, asserting contract claims as well as a claim under a fairly new and untested Massachusetts civil rights statute.

After a three-week jury trial at which my partner Dan Kornstein and I represented Ms. Redgrave, the jury entered a verdict in favor of Ms. Redgrave on the contract claim. However, under the court’s jury instructions that narrowly interpreted the civil rights statute, the jury entered a verdict for the BSO on that claim. Amazingly, about a week later the jurors unanimously (and without any prompting from counsel) wrote a joint letter to the trial judge stating that they wanted to find for Ms. Redgrave on the civil rights claim but could not do so in good conscience given what the judge had told them in his instructions about the civil rights law.

We appealed the part of the verdict that was in favor of the BSO. The three-judge panel of the Court of Appeals for the First Circuit that heard the appeal ruled in Ms. Redgrave’s favor on all issues, and we uncorked the champagne bottles. But then the BSO asked the Court of Appeals to rehear the appeal en banc, meaning that all of the judges on the First Circuit Court of Appeals would hear the appeal. The Court of Appeals agreed to do that, and the en banc majority reversed the three-judge panel; they upheld Ms. Redgrave’s Judgment against the BSO on her contract claim, but they awarded Judgment to the BSO on her civil rights claim, on extremely dubious reasoning.

In representing Ms. Redgrave, we linked our cause to the larger cause of justice, and we also strove in our arguments for the poetic. Our brief to the Court of Appeals for the First Circuit concluded as follows:

In behaving as it did in this case, BSO’s management betrayed the basic tenet that people should not lose their jobs because of their political views and betrayed as well BSO’s contractual commitment to [Ms. Redgrave]. Management also betrayed the Orchestra itself and its profound music. As Peter Sellars tried to explain to management on Monday, March 29 and in the days that followed, the theme of much of classical repertoire is liberation and salvation through commitment to what is right (235a), and “Oedipus Rex” is in the same great tradition:

The point of Oedipus Rex [Sellars told BSO Manager Morris on Monday, March 29, 1982] is that he tells his guards to scour the City of Thebes for the murderer of his father. And the point is after he’s done trying to bully everyone else on their political points of view and . . . after the most intense introspection, he realizes the heart of these issues lies within his own self. And Thebes, the city, is destroyed by a plague, and the plague is only lifted when one man, Oedipus Rex, faces the moral imperative. (235a [quoting Sellars’ testimony at trial]).

Both Oedipus and BSO management faced choices. Oedipus, unwitting of having committed any wrong, chose to face the truth in order to stop a plague. Management, although warned by Sellars that to do so would “have serious and deadly repercussions” (193a), chose to cancel Oedipus — both literally and figuratively — because management perceived that, in [BSO Manager] Morris’ words, “the worst thing that could happen” would be for public statements to be made censuring BSO (598a-599a). Of course, it was only on odious . . . reasoning that there was anything at all censurable about BSO’s hiring of Miss Redgrave on her merits to perform in “Oedipus Rex.” Management thus loosed a type of plague, a plague that once went by the name McCarthyism and at other times by other names, and a plague that at one time in the past almost destroyed the Boston Symphony Orchestra itself.*

* We refer to what has been called “the Muck episode.” During the height of anti-German hysteria during World War I, BSO was conducted and lead by Dr. Muck, a native German. Protest by a segment of the community over what they perceived to be Dr. Muck’s pro-German political leanings caused Dr. Muck to resign, along with approximately two dozen BSO musicians who also were German. BSO went into eclipse for a decade and almost died. See H. Johnson, Symphony Hall, Boston, 74-80 (1950).

The jury tried to undo this great wrong and to stop the plague, but the trial court’s rulings on the law would not allow it. This Court should reverse the profoundly dangerous rulings of law below that stood in the jury’s way.

When working on legal matters, I look for literary connections, references, usages and try to make them part of the process of persuasion. And when I come across poems like the two below, I appreciate their special relevance and try to plumb all of what they have to tell me.

I also wonder whether poetic justice has something to do with the labor of love of which this website is a part. The question occurs because this entire poetic venture is one of the unexpected gifts that some unwanted and very scary guests left for me in their fairly recent wake, as discussed in part in the section below concerning how this poetry program came to be.

 

Marvin Wexler
mwexlerpoetry@gmail.com

 

The Rules of Evidence
by Lee Robinson
(quoted with the gracious permission of the poet and
copyright owner Lee Robinson)

What you want to say most
is inadmissible.
Say it anyway.
Say it again.
What they tell you is irrelevant
can’t be denied and will
eventually be heard.
Every question
is a leading question.
Ask it anyway, then expect
what you won’t get.
There is no such thing
as the original
so you’ll have to make do
with a reasonable facsimile.
The history of the world
is hearsay. Hear it.
The whole truth
is unspeakable
and nothing but the truth
is a lie.
I swear this.
My oath is a kiss.
I swear
by everything
incredible.

 

Rumi

I have shrunk beyond the smallest atom,
Expanded further than the last star.
All that is left of me is only
This garden, laughing with fruit.
The law of Wonder rules my life at last….